The above clause, which only operates at the level of the regulation of the use of a patent already granted, is potentially wide-ranging because there is no definition of the limited exceptions that are allowed. Member states should, thus, be able to use Article 30 to justify a variety of socio-economic measures they may wish to take to control the use made by specific patents. However, there are a number of restrictions to the measures that states can take. Exceptions to monopoly rights can first only be “limited” exceptions and should, therefore, not amount to a patent rights altogether. Secondly, the exceptions must not unreasonably conflict with the exploitation of the patent. And, thirdly, the exceptions should not unreasonably prejudice the legitimate interests of the patent owner. These conditions seem to significantly restrict the scope of the measures that states could take. Similarly, Article 30 includes a section, which recalls that third parties also have legitimate interests. However, the structure of Article 30 seems to imply that the legitimate interests of third parties are sub-ordinate to the interests of patent holders. Though this should be the case, there are situations such as the case of life-saving patented drugs where the legitimate interests of third parties could be deemed to override other interests and allow states to adopt exceptions. In practice, an interpretation of Article 30 favouring third parties may be difficult to sustain. Thus, in a case that dealt with Article 30, the Panel found that while permitting the use of patented substances for experimental purposes was admissible, stockpiling patented pharmaceuticals prior to the expiration of the patent does not fall within the limited exceptions of Article 30, though introduction into the market is prohibited until the expiration date of the patent ⁴⁰.

Notes and References

⁴⁰Canada: Patent Protection of Pharmaceutical Products , Report of the Panel, 17 March 2000, WTO Doc WT/DS114/R.